FrenchValley Aviation v. Superior Court
Filed 10/17/08 French Valley Aviation v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
FRENCH VALLEY AVIATION, INC., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; AIR PETRO CORP., Real Party in Interest. | E046169 (Super.Ct.No. RIC478292) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard J. Schwartz, Judge. Petition granted.
Michaelis, Montanari & Johnson, Garry L. Montanari and Wesley S. Wenig, for Petitioner.
No appearance for Respondent.
Bullard, Brown & Beal, John W. Roddy, Patrick E. Naughton and Willis J. King, III, for Real Party in Interest.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Labor Code section 3864 provides, If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.
The issue raised by this petition is whether petitioner French Valley Aviation (FVA) was an employer of a personal injury plaintiff, Thomas McKaye, thus barring a third party tortfeasors claim for contribution or indemnity against it.
The trial court denied FVAs motion for summary judgment, finding that there was a triable issue of fact whether McKaye was an employee of FVA and/or another company, Around the World Jet (ATW).
FVA contends that a dual employment relationship existed with it, ATW and McKaye. At the time of the accident McKaye was performing a job duty for FVA so that
Air Petro cannot get indemnity from it.
Air Petro claims that there never was a formal employment relationship between FVA and McKaye. McKaye himself answered interrogatories indicating ATW was his employer, although in a deposition he stated that both entities were employers. Air Petro asserts that McKayes job functions were simply to run errands and perform miscellaneous duties for an individual, Joe Diorio. In order for an employment relationship to exist, the parties have to believe that they have an employer-employee relationship and there was never such an understanding here.
The right to control and direct activities of the employee are the most important factors in determining the existence of an employment relationship. In this case there were several small businesses that were all controlled by Diorio. McKaye performed duties for both companies and was answerable to Diorio. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175 (Kowalski).) The fact that McKayes check and workers compensation were issued by ATW does not prevent the formation of an employment relationship between McKaye and FVA. (National Auto. etc. Co. v. Ind. Acc. Com. (1947) 80 Cal.App.2d 769, 773.)
This is unlike the situation in Kowalski where the injured worker worked for a maintenance company and was performing his job at a Shell Oil refinery pursuant to a contract between Shell and the maintenance company. There was substantial evidence to support the jurys finding that the plaintiff was not a special employee of Shell. He performed work under the control and direction of the maintenance company. He was not permanently assigned to Shell and was on the maintenance companys payroll. The Supreme Court noted as an additional factor that the worker believed his employment relationship was with the maintenance company. (Kowalski, supra,23 Cal.3d at p. 179.) McKayes subjective belief whether he had an employment relationship with FVA is not consequential in the context of these facts. He knew that he answered to Dorio and was doing job duties required by his employment for both companies. At the time of the accident he was driving a fuel truckclearly a task performed for the benefit of FVA. It is, thus, clear from the undisputed facts that there was a dual employment relationship with FVA, ATW, and McKaye. He received workers compensation benefits as a result of this incident and under Labor Code section 3864 real party in interest is barred from seeking contribution or indemnity from FVA.
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order denying FVAs motion for summary judgment and to issue a new order granting the motion.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Costs are awarded to petitioner.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
HOLLENHORST
J.
KING
J.
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